Month: October 2015

On 27 October 2015, it was reported that an Irish former TV actor, Jim Corry, from County Kerry, who is accused of an IRA mortar attack in Germany, is expecting to be extradited. The Belfast Telegraph report is here.

Mr Corry was arrested by the Gardaí on 9 October 2015 pursuant to a European Arrest Warrant (EAW), issued by Germany, which states that Mr Corry is wanted for terrorism type offences. This is in connection with suspected involvement in a Provisional IRA mortar attack on Osnabruck Army barracks on 28 June 1996.

The same day, Mr Corry appeared before Ms Justice Aileen Donnelly, sitting at the High Court, in Dublin, who was satisfied that Mr Corry was, indeed, the person named on the EAW. He was then remanded in custody at Cloverhill Prison.

On 13 October 2015, Mr Corry appeared at the High Court, for a second time, where Ms Justice Aileen Donnelly granted bail subject to an independent surety of €3,000 and on the condition that Mr Corry reside at a given address. Account was taken of the fact that Mr Corry has been resident in Ireland for 20 years, and in view of the historic nature of the alleged offence.

Mr Corry denies having any involvement in IRA activities, and seems resigned to the fact of his extradition. In response to questioning from a reporter in recent days, Mr Corry stated: “They want me extradited and I think that’s what’s going to happen.”

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On 12 October 2015, the Administrative Court dismissed the appeal against the order for extradition, against Grzegorz Budzik, from the United Kingdom to Poland, pursuant to a European Arrest Warrant (EAW), to serve a sentence of one year and two months’ imprisonment for fraud offences.

The Administrative Court held that there was no basis for the submission that it was extremely unlikely that the care that Mr Budzik’s wife and daughter needed would be made available in Poland, resulting in the likelihood that their daughter would be placed in foster care in the UK.

Moreover, it was held that District Judge Grant had not been wrong to conclude that extradition had been proportionate under Article 8 of the European Convention on Human Rights (ECHR).

It is alleged that, between 24 April 2010 and 13 May 2010, Mr Budzik obtained fuel by presenting counterfeit bank transfer receipts by misleading the vendor as to his intention to pay, causing total losses of approximately £10,285.20. On 28 December 2015, Mr Budzik was convicted by the District Court in Tarnow, in Poland, of a number of fraud offences. A sentence of one year and two months’ imprisonment was conditionally suspended, but activated because Mr Budzik had failed to pay compensation to the victim.

District Judge Grant, 22 May 2015

The sole issue in dispute before District Judge Grant, sitting at Westminster Magistrates’ Court, was whether the extradition of Mr Budzik would infringe his rights under Article 8 ECHR, as well as the rights of his daughter, and his wife (who suffers from multiple sclerosis).

Mr Budzik’s extradition to Poland was ordered and he appealed, his lawyer contending that, in particular:

It was extremely unlikely that Mr Budzik’s wife would be able to care for herself or their daughter if he was extradited.

The likelihood is that their daughter would be placed in social services care, and that his wife would lose custody of the child.

That extradition would affect Mr Budzik’s wife’s right of residence in the UK and by extension, her access to healthcare free of charge through the NHS.

Mr Budzik’s lawyer further submitted that District Judge Grant erred in finding that he was a fugitive when he left Poland, within two months of the original sentence being imposed. Leave to appeal was granted by Ouseley J.

Administrative Court, 12 October 2015

Mr Justice Supperstone, sitting at the Administrative Court, held:

That there was no basis for Mr Budzik’s contention that it is extremely unlikely that the care for Mr Budzik’s wife would be made available in Poland and that, therefore, their daughter would be placed in care.

There was no evidence for the inference that, where his family circumstances are known to the local authority, this invites the inference that the local authority will deal with the situation that will arise after Mr Budzik’s extradition by removing their daughter from her mother, absent any evidence.

On the finding that Mr Budzik is a fugitive, it is not settled law that a person only becomes a fugitive when a suspended sentence is activated. Salbut applied. The phrase “unlawfully at large” was capable of applying from the moment that the conditions of such a sentence are breached, and Mr Budzik was aware that when he left Poland, he had to pay compensation (which he failed to do).

In any event, whether or not Mr Budzik is a fugitive seems unlikely to matter since he knew that he was not complying with the conditions of the suspended sentence, and left Poland knowing that he would be imprisoned if he stayed.

Moreover, in conducting the proportionality balancing exercise under Article 8 ECHR, applying Celinski, District Judge Grant had concluded that extradition was proportionate. Mr Justice Supperstone was not persuaded that this was the wrong decision, noting that District Judge Grant had acknowledged the “drastic” effect of an extradition order, and had stated that he had “considerable sympathy” for Mr Budzik and his immediate family.

On 25 September 2015, authorities in Trinidad and Tobago postponed the extradition hearing of former FIFA Vice President, Jack Warner, to 2 December 2015. A report is here.

This followed a request by Mr Warner’s lawyers for more time, in order to travel to the United States and discuss extradition terms. Mr Warner remains subject to weekly police reporting conditions and his passport has been seized.

Mr Warner’s extradition had been approved by authorities in Trinidad and Tobago on 21 September 2015. A blog is here.

On 29 September 2015, it was further reported that Mr Warner had been banned for life from football-related business by FIFA’s Ethics Committee. On 21 October 2015, the investigatory chamber of the Ethics Committee confirmed that proceedings are ongoing against both men.

Sepp Blatter Under Criminal Investigation

On 25 September 2015, the Swiss Attorney General’s Office (OAG) also announced that criminal proceedings had been commenced against the President of FIFA, Sepp Blatter, on suspicion of criminal mismanagement as well as the alternative offence of misappropriation.

The allegations against Mr Blatter amount to offences contrary to Article 158 of the Swiss Criminal Code (SCC), and Article 138 SCC, respectively. The OAG press report is here.

The OAG alleges that, on 12 September 2005, Mr Blatter signed a contract with the Caribbean Football Union (with Mr Warner as the President at this time), and that this contract was unfavorable for FIFA. It is also alleged that, in the implementation of this agreement, Mr Blatter violated his fiduciary duties and acted against the interest of FIFA and/or FIFA Marketing & TV AG.

Additionally, Mr Blatter is suspected of a “disloyal payment” (i.e. a payment made against FIFA’s best interests) of two million Swiss Francs to Michel Platini, President of Union of European Football Association (UEFA), at the expense of FIFA, which was allegedly made for work performed between January 1999 and June 2002; this payment was executed in February 2011.

Mr Blatter was interviewed by OAG representatives on 25 September 2015. Mr Platini was heard as a “person asked to provide information”, pursuant to Article 178 of the Swiss Code of Criminal Procedure, on the same day. Both men deny any wrongdoing.

On 8 September 2015, Sepp Blatter and Michel Platini were provisionally suspended by the FIFA Ethics Committee for 90 days, while corruption claims are being investigated.

Eduardo Li Extradition Approved

On 29 September 2015, the Swiss Federal Office of Justice (FOJ) approved a US extradition request for the former President of the Costa Rican Football Federation (FEDEFUT), Eduardo Li. A press release is here.

Mr Li is accused by the US Department of Justice (DoJ) of taking bribes in connection with the sale of marketing rights for World Cup 2018 qualifying games.

In its ruling, the FOJ found that the conditions for Mr Li’s extradition had been fulfilled. In particular, the principle of dual criminality was satisfied. By allegedly accepting bribes for the award of sports marketing contracts, Mr Li: “massively influenced the competitive situation and distorted the market for media rights in connection with the World Cup qualifying matches.” This placed other sports marketing companies at a disadvantage.

Furthermore, “among other things, FEDEFUT was prevented from negotiating marketing agreements which might have been more favourable”. In Switzerland, such conduct constitutes unfair practices under the Federal Law on Unfair Competition.

Mr Li has 30 days in which to appeal the decision, and was granted five days in which to notify the FOJ of his intention to do so. To date, there has been no official confirmation that Mr Li has, indeed, notified the FOJ of such any such appeal.

Rafael Esquivel Bail Denied

On 6 October, it was reported that Rafael Esquivel, Vice President of The South American Football Confederation (CONMEBOL), has been denied bail on health grounds in Switzerland. Mr Esquivel is currently in hospital in Switzerland. A report is here.

According to the FOJ, Mr Esquivel is appealing against the decision last month by the Swiss Federal Department of Justice to grant a US extradition request. In an earlier statement by the Federal Criminal Court of Switzerland, which did not name Mr Esquivel, it was stated that bail was sought because of his “advanced age and poor state of health.” That was “not regarded as sufficient to counter the risk of absconding,” the Court said.

The Court also found that he was “more than capable of traveling,” has no close ties to Switzerland and electronic monitoring would not reduce his flight risk. Further medical tests are being undertaken.

Costas Takkas Extradition Approved

On 9 October 2015, the Swiss Federal Office of Justice approved the extradition of Costas Takkas to the US, the fourth such approval of an official in the FIFA investigation. The FOJ press release is here.

Mr Takkas is the former Secretary-General of the Cayman Islands Football Association (CIFA) and attaché to the President of the Confederation of North and Central American and Caribbean Association Football (CONCACAF).

Mr Takkas is accused of demanding and accepting bribes of millions of dollars for the President of CONCAAF, in connection with the sale of marketing rights for the 2018 and 2022 World Cup qualifiers, to a US sports marketing company.

The FOJ concluded that the conditions for extradition are fulfilled. In particular, dual criminality was satisfied on the basis that Mr Takkas accepted bribes for the award of sports marketing contracts, massively influencing the competitive situation and distorting the market for media rights. This would constitute an offence in Switzerland, in the form of unfair practices, under the Federal Act on Unfair Competition.

Again, Mr Takkas has 30 days in which to appeal to the Federal Criminal Court and five days in which to notify the FOJ of his intention to do so. There has been no confirmation of such an appeal being made, to date.

Julio Rocha Extradition Approved

On 15 October 2015, the FOJ approved the extradition of Julio Rocha, to the US from Switzerland. The formal US extradition request was submitted on 1 July 2015 and is based on an arrest warrant, issued on 20 May 2015, by the US Attorney’s Office for the Eastern District of New York.

Mr Rocha is accused of demanding and taking bribes of $150,000 for himself and another football official in connection with the sale of marketing rights to FENIFUT’s World Cup 2018 qualifiers to a US sports marketing company.

The conditions for extradition were met: the facts set out in the US extradition request are also punishable under Swiss law through the principle of dual criminality.

Of particular note, the FOJ determined that Mr Rocha would be extradited first to the US, while simultaneously approving his subsequent extradition to Nicaragua. This followed an extradition request by Nicaragua, issued on 10 August 2015, the offences being largely identical to those listed in the US request. Mr Rocha agreed to his extradition to Nicaragua, which the FOJ then approved on 14 August 2015, under a simplified procedure. This was subject to a resolution of priority between the Nicaraguan and US requests.

The FOJ held that the key point in this decision was the fact that the US authorities have been conducting wide-ranging criminal proceedings against a number of individuals for some time. These individuals are already in the US, or are to be extradited to the US. Further, the FOJ found that most of the evidence and witnesses are also located in the US.

By contrast, the Nicaraguan authorities only commenced criminal proceedings in response to charges brought on 10 June 2015. These charges are made against a single individual, and thus, unlike the US proceedings, according to the FOJ, “did not permit an overall evaluation of the facts at hand”.

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On 9 October 2015, the High Court allowed the appeal against the order for extradition of Adam Wawrzyczek, from the United Kingdom to Poland, pursuant to a European Arrest Warrant (EAW).

The Court found that it had not been established that Mr Wawrzyczek’s absence from trial proceedings in Poland had been deliberate, on the basis that it had not been established that the appellant had been served with two summonses. The judgement is here.

Facts

Mr Wawrzyczek was sought in Poland in relation to three alleged offences of fraud, totalling £12,600, allegedly committed between 2002 and 2005, with a total of two years and six months’ imprisonment remaining to be served.

It was contended by the judicial authority that Mr Wawrzyczek was summoned in person on 29 September 2005 (the first summons), and on 9 November 2006 (the second summons). Mr Wawrzyczek moved to the UK in January 2006 and returned to Poland once, in 2007.

At a full extradition hearing at Westminster Magistrates’ Court on 1 May 2015, before District Judge Ikram, the judicial authority (the District Court in Bielsko-Biala ) stated for the first time that the term ‘summoned in person’ meant that the summons had been served on Mr Wawrzyczek personally. Mr Wawrzyczek provided evidence of his move to the UK, including his P60.

On 19 May 2015, Mr Wawrzyczek’s lawyer provided further evidence to District Judge Ikram, in the form of Mr Wawrzyczek’s pay slip for the period in which the second summons was issued, which set out that he was working a 40-hour week during this period, plus overtime. It was contended that it was impossible for him to have received the summons in person; he therefore did not know about his trial dates, and was entitled to a retrial.

District Judge Ikram, 29 May 2015

In his decision delivered on 29 May 2015, District Judge Ikram refused to accept Mr Wawrzyczek’s payslips as evidence, finding that, in accordance with directions given at the first hearing, parties were not permitted to submit further evidence after all the evidence has been heard at the substantive hearing, and no good reason for the earlier omission had been provided.

Further, District Judge Ikram did not find the evidence given by Mr Wawrzyczek on the issue of whether he had not been served personally with both summonses, to be credible. District Judge Ikram ordered the extradition of Mr Wawrzyczek, who appealed the decision.

Cranston J granted permission to appeal on three grounds: dual criminality (section 10 EA 2003); retrial rights (s. 20 EA 2003); and passage of time (s. 14 EA 2003). Of particular note, it was contended by Mr Wawrzyczek that, on the basis that the judicial authority could not demonstrate that he was entitled to a retrial, his extradition was barred by s. 20 EA 2003.

Administrative Court, 9 October 2015

Mr Justice Supperstone, sitting at the Administrative Court, held that District Judge Ikram was wrong to refuse to admit the wage slips. Mr Wawrzyczek’s lawyer had clearly explained in his emails (which attached the evidence) to District Judge Ikram why the weekly payslips had not been adduced in evidence at the full hearing. This evidence had important influence on the result of the case.

In considering the s. 20(3) EA 2003 argument, and with respect to Mr Wawrzyczek’s payslips covering the relevant period, it was not possible to be satisfied to the criminal standard that the second summons was served on him personally on 9 November 2006, as stated in the EAW. The evidence, in fact, supported that he was not served with the second summons.

This decision with respect to the second summons impacted upon the view taken of Mr Wawrzyczek’s credibility with respect to the first summons. Further, the judicial authority had more than adequate time in which to adduce evidence in support of the fact that he was personally served with the first summons.

Accordingly, in view of the conclusions with respect to the first and second summons, Mr Justice Supperstone held that he could not be sure that Mr Wawrzyczek’s absence from the subsequent trial was deliberate. In view of the fact that he would not be entitled to a retrial if returned to Poland, Mr Wawrzyczek’s extradition was barred by section 20 EA 2003. Fenyvesi applied. Podlas considered.

Mr Justice Supperstone did not consider other grounds of appeal. Appeal allowed.

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On 17 October 2015, Haroon Aswat, who was extradited to the United States from the United Kingdom in January 2015, having fought extradition for several years, was sentenced by the US Manhattan Federal Court to 20 years’ imprisonment for terror crimes. A report is here.

Background

The US government alleges that in November 1999, Mr Aswat travelled to Oregon in the US, to help set up and run a jihadi training camp; the trip is said to have been arranged by Abu Hamza. In July 2005, Mr Aswat was arrested in Zambia, and deported to the UK, where he was arrested on a provisional warrant pursuant to a request made by the US government.

On 12 September 2005, a US federal grand jury returned an indictment against Mr Aswat, charging him with four counts of criminal conduct arising out of his participation in the activities of the Oregon training camp. On 29 September 2005, the US government requested the extradition of Mr Aswat to stand trial on that indictment in the US District Court, Southern District of New York.

Judicial Proceedings: UK and the European Court of Human Rights (ECtHR)

On 5 January 2006, the Senior District Judge sitting at Westminster Magistrates’ Court decided that there were no bars to Mr Aswat’s extradition, and the Secretary of State ordered his extradition. Mr Aswat appealed to the High Court, and his appeal was dismissed on 30 November 2006.

The House of Lords subsequently also refused permission to appeal. On 10 June 2007, Mr Aswat lodged an application with the ECtHR. At this time, Mr Aswat’s mental and behavioural state deteriorated and he was admitted to Broadmoor Hospital in March 2008.

On 16 April 2013, the ECtHR ruled that the extradition of Mr Aswat to the US would breach Article 3 of the European Convention on Human Rights (ECHR), solely on account of the severity of his mental condition (rather than the length of his possible detention there). The UK appealed for the case to be considered by the Grand Chamber, but this was refused on 11 September 2013.

On 12 September 2013, the Secretary of State announced her decision not to withdraw the extradition order, based on further information presented to her by the US Department of Justice. On 16 April 2014, the High Court held that the reservations expressed by the ECtHR, with respect to Article 3 ECHR, should no longer stand. This was in view of the specific assurances and additional information provided by the US government to the UK government.

Mr Aswat was extradited to the US on 21 October 2014. On 29 January 2015, the ECtHR declared inadmissible a further application by Mr Aswat, challenging the sufficiency of the US government’s assurances; the EtCHR found that the concerns raised by the ECtHR in its 2013 ruling had been directly addressed by the comprehensive assurances and additional information received by the government of the UK from the US government. The ECtHR press release is here.

Manhattan Federal Court Ruling, 16 October 2015

Mr Aswat pleaded guilty in New York on 30 March 2015 to one count of conspiring to provide material support to Al Qaeda, and one count of providing material support to Al Qaeda.

On 16 October 2015, Mr Aswat was sentenced by US District Judge Katherine Forrest, sitting at the Manhattan Federal Court to 20 years’ imprisonment. It was also ordered that he be given specialised psychiatric care while in custody. The press release is here.

It is likely that Mr Aswat will serve six years’ imprisonment, having already spent approximately ten years in UK and US custody. Mr Aswat’s lawyer has stated that he is considering whether to appeal. In any event, it is expected that Mr Aswat will apply to serve his sentence in the UK.

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On 9 October 2015, the High Court dismissed the appeal of Pitor Hein, against the order for his extradition, to Poland from the United Kingdom, pursuant to a European Arrest Warrant (EAW).

Three grounds of appeal were dismissed: passage of time, under section 14 of the Extradition Act 2003 (EA 2003), and proportionality, under both Article 8 of the European Convention on Human Rights (ECHR), and section 21A EA 2003, respectively. The judgment is here.

Facts

An EAW was issued by the Regional Court in Opole in Poland, on 13 December 2012, for Mr Hein’s arrest, and certified by the National Crime Agency (NCA) on 6 January 2015. The EAW relates to five alleged offences of fraud committed between 22 May and 30 July 2002, totalling £2,753 in value.

District Judge Goldspring, 19 June 2015

Before District Judge Goldstein, sitting at Westminster Magistrates’ Court, Mr Hein (who was not legally represented) raised two challenges to extradition:

Due to the passage of time it would be unjust or oppressive to extradite him, pursuant to section 14 EA 2003.

It would contravene his rights under Article 8 ECHR, pursuant to 21 EA 2003.

District Judge Goldstein was also obliged to consider the independent statutory proportionality bar under s. 21A EA 2003.

On 19 June 2015, District Judge Goldspring rejected all three grounds and ordered Mr Hein’s extradition to Poland. His appeal was granted by Cranston J, who observed that the matters were “finely balanced”, and that the outcome might have been different if Mr Hein had been legally represented.

High Court, 9 October 2015

Mr Hein (who was now legally represented) pursued the same bars to extradition on appeal. Mr Justice Supperstone sitting at the High Court held:

It is not possible to rely on the bar if Mr Hein had been responsible for the delay. Gomes applied. District Judge Goldstein was entitled to find that Mr Hein was a fugitive on the evidence; nothing undermined this finding.

District Judge Goldstein had proper regard to the relevant authorities. Norris; HH; Celinski applied. The question is whether the DJ made the wrong decision: In the Matter of B (a child) (FC). The District Judge was entitled to find that Mr Hein is facing serious allegations and, if convicted, a custodial sentence is likely to follow. He noted that the interests of children are a primary consideration, and had regard to the existence of Mr Hein in the UK, his family life, and the hardship he would suffer, were he to be extradited. District Judge Goldstein was entitled to consider the factors in favour of discharge. The finding that the Mr Hein’s children can and will be provided with an appropriate environment in which to be brought up, taken alongside the factors in favour of discharge, reduced the public interest in honouring extradition arrangements. However, this finding did not make it disproportionate for Mr Hein to be extradited.

With respect to the statutory proportionality bar, under s. 21A EA 2003, there was no evidence that the Polish authorities would take measures which would be more coercive than Mr Hein’s extradition.

An EAW was issued by the Regional Court in Opole in Poland, on 13 December 2012, for Mr Hein’s arrest, and certified by the National Crime Agency (NCA) on 6 January 2015. The EAW relates to five alleged offences of fraud committed between 22 May and 30 July 2002, totalling £2,753 in value.

District Judge Goldspring, 19 June 2015

Before District Judge Goldstein, sitting at Westminster Magistrates’ Court, Mr Hein (who was not legally represented) raised two challenges to extradition:

Due to the passage of time it would be unjust or oppressive to extradite him, pursuant to section 14 of the Extradition Act 2003 (EA 2003).

It would contravene his rights under Article 8 of the European Convention on Human Rights (ECHR), pursuant to 21 EA 2003.

District Judge Goldstein was also obliged to consider the independent statutory proportionality bar under s. 21A EA 2003.

On 19 June 2015, District Judge Goldspring rejected all three grounds and ordered Mr Hein’s extradition to Poland. His appeal was granted by Cranston J, who observed that the matters were “finely balanced”, and that the outcome might have been different if Mr Hein had been legally represented.

High Court, 9 October 2015

Mr Hein (who was now legally represented) pursued the same bars to extradition on appeal. Mr Justice Supperstone sitting at the High Court held:

It is not possible to rely on the bar if Mr Hein had been responsible for the delay. Gomes District Judge Goldstein was entitled to find that Mr Hein was a fugitive on the evidence; nothing undermined this finding.

District Judge Goldstein had proper regard to the relevant authorities. Norris; HH; Celinski The question is whether the DJ made the wrong decision: In the Matter of B (a child) (FC). The District Judge was entitled to find that Mr Hein is facing serious allegations and, if convicted, a custodial sentence is likely to follow. He noted that the interests of children are a primary consideration, and had regard to the existence of Mr Hein in the UK, his family life, and the hardship he would suffer, were he to be extradited. District Judge Goldstein was entitled to consider the factors in favour of discharge. The finding that the Mr Hein’s children can and will be provided with an appropriate environment in which to be brought up, taken alongside the factors in favour of discharge, reduced the public interest in honouring extradition arrangements. However, this finding did not make it disproportionate for Mr Hein to be extradited.

With respect to the statutory proportionality bar, under s. 21A EA 2003, there was no evidence that the Polish authorities would take measures which would be more coercive than Mr Hein’s extradition.